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QassJlMilL 
Book : 



4 



X 



KANSAS CONTESTED ELECTION. 



SPEECH 



/ 



OF 



SON. WM. A. LAKE, OF MISSISSIPPI, 

• IN THE HOUSE OF REPRESENTATIVES, MARCH 18, 1856, 

On the Resolution reported by the Committee of Elections in the Contested-Election case 
. ^ . from the Territory of Kansas: 



Mr. LAKEsnicI: 

Mr. Speaker: I propose to occupy but a small 
portion of the time of tiiis House in the delivery 
of the views which I entertain on the subject before 
them. I assure you, sir, and tlie House which 
I liave the honor to address, that I would not 
occupy one moment of their time, if I did not 
feel impelled by a strong sense of duty; for my 
brief experience in con<jressional legislation has 
impressed me with the belief that there is a much 
stronger desire on the part of members to speak 
than to listen. This conviction, connected with 
my natural repugnance to public speaking, would 
have kept me silent, if I did not deem it a duty to 
speak. 

In saj^ing that I deem it my duty to speak, I 
do not mean to declare that mine is a mission to 
carry conviction to the minds of those to whom 
I am speaking: no such thing. I do not expect 
anything will fall from me in the remarks I am 
about to submit that will change the opinion or 
effect the action of any member; nor do I speak in 
the popular language of this House to the country, 
because I am quite sure that but a small portion 
of that feels any interest in the views which I 
entertain on this or any other subject. 

I will frankly say that I speak for myself, and 
for those whom I have the honor to represent, 
there being no vanity in supposing that those who 
sent me here will fell some interest in the opinions 
which I entertain on this grave and important 
question. . 

I propose, Mr. Speaker, to answer the argu- 
ments which have been made, not only by the 
gentleman who immediately preceded me, but 
those of gentlemen who have advocated the same 
side of this cjucstion. 

I am opposed, sir, to the resolution which is 
now the subject of debate. I am opposed to 
Bending for persons, for the purpose of investi- 
gating, not the " election, returns, and qualifica- 
tions" of the sitting Delegate from the Territory 
of Kansas — for that is not the subject upon which 
information is sought or investigation desired — 
but to the sending for persons and papers to in- 



I vcstigate an entirely different and distinct matter, 
and not within the scope of legitimate inquiry. 
It is a mistake to suppose that we who arc op- 
posed to this resolution are shrinking from the 
investigation of the charge, that the sitting Dele- 
gate does not hold his seat on this floor by a 
proper and legal tenure. We are not unv/illing 
to examine into his " election, returns, and quali- 
fication.s, " the investigation of these subjects being 
the constitutional mode of ascertaining his right 
to a seat here. But whilst we declare our entire 
willingness to enter upon any and all fields of 
legitimate inquiry, we do pause, and hesitate, and 
refuse to enter upon those which, we say, the 
Constitution forbids; which, we believe, would/ 
make us trespassers, and this House guilty of' a 
usurpation of power. Not only do I differ from 
the majority of the committee as to the extent of 
this investigation, but I also dissent from them in 
reference to the mode in which they propose to 
conduct it. 

This is a judicial, and not a legislative question. 
We are to hear and determine — to examine the 
law and the facts, and to decide accordingly. If 
it were a legislative question merely, wo might 
determine it upon considerations of expediency. 
We might weigh the individual meriis of the 
contestants, inquire into their comparative fit- 
ness for the business of legislation, and admit 
the one that in our legislative wisdom would 
contribute most to the advancement of the great 
interests of the country. But in acting thus we 
should not be performing the duty assigiied us; 
we would be acting the part of electors — usurping 
the place and rule of the people instead of ascer- 
tainmg who has been elected by the people, and 
entitled to the seat according to the law and the 
facts of the case. That this is a judicial question 
which Ve are to try as a court, is not only appa- 
rent from the subject to be decided, and the mode 
of its trial, but the fifth section of the first article 
of the Constitution declares that " Each House 
shall be the judge of the elections, returns, and 
qualifications of its own members. " This clause 
determines the character of the question to be 






judicial, and this House the court to hear and 
decide it. 

It is important to determine the character of 
this question, and the office of this House in 
regard to it, because as judges \vc do judiciously 
know many things which as legislators we may 
be ignorant of. As a high court — of Parliament, 
if you plen.sc — we know judicially not only the 
acts of Congress, but all the acts of the State 
and Territorial Legislatures, and all the otfieers of 
their various governni'jntal departments. Hence, 
public records need not the same authentication, 
when introduced before us in testimony, as would 
be required to secure their introduction into a 
State court, or a tribunal which is not iffvested 
with this judicial omniscience. The question is 
judicial, and the trial of it must be judicial. ' 

The next question that presents itself is, if it 
is- a judicial Question, how is it to be decided ? 
What is the law, and where is the law that is to 
govern and control our decision ? If we look into 
the Constitution, we find the rules that regulate 
^nd direct our inquiry. We there find a clause 
which prescribes the qualiftcations of members of 
this House. They must be twenty-five years of 
age, citizens of the United States for seven years, 
and an inlii^bitant of the State-from whence they 
come. In regard to the eleclion, wc find another 
clause declaring that it shall be according to the 
acts of State Legislatures, which shall provide 
for the time, place, and manner of holding the 
election. These provisions of the Constitution, 
although relating to the Representatives of States, 
and not to Delegates of Territories, are neverthe- 
less applicable to the case of the Delegate from 
Kat^sas, because the act of Congress organizing 
that Territory declares "that the Constitution 
and all laws of the United States which are not 
locally applicable shall have the same force and 
^ffect v.'ithin the said Territory of Kansas as 
elsewhere within the United States." 

The clauses of the Constitution already referred 
to being general and ajiplicablc to all the States, 
and there being nothing in the condition of 
Kansas rendering them "locally inapplicable," 
we must conclude that it was the intention of 
Congress to put them in force in that Territory. 
Thitough these clauses of the Constitution we 
easily arrive at the law which is to govern our 
investigations. The facts of the case we are to 
obtain in the ordinary modes by which we pro- 
cure them in courts of justice. These modes are 
by depositions, or the sending for persons aaid 
papers. I do not doubt the power of this House 
to adopt the recommendation of the majority of 
the committee, and to send for persons and pa]jers; 
but not being convinced by their reasons in favor 
of this plan, and knowing that the same purpose 
can be accomplished by the cheaper, and easier, 
and more usual mode of depositions, I am op- 
posed to sending for persons. But, as the con- 
testant has failed to avail himself of the provi- 
sions of the act of 1851, providing for the taking 
of depositions in cases of contested elections, I 
am entirely willing to send out commissioners to 
obtain all the facts within the range of legitimate 
investigation. 

It will be seen, Mr. Speaker,- by reference to 
the clauses of the Constitution already referred 
to, that our jurisdiction is limited. How far docs 
it extend? It extends, first, to the election. What 



election ? The election under which the Delegate 
claims his seat. We then turn to the clause of 
the Constitution touching the election of Repre- 
sentatives, and we find that section fourth of article 
first declares, that " the times, placets, and manner 
of holding elections for Senators and R'present- 
atives shall be prescribed in each State by the 
Legislature thei-eof." As this clause, by the 
Kansas bill, embraces Delegates as well as Rep- 
resentatives, we have only to look to the enact- 
ments of the Kansas Legislature to see if this part 
of the Constitution has been complied with, and 
a law passed on the subject. We know that such 
a law was p:>ssed, and that it does prescribe the 
time, places, and manner of holding the eli^tion 
for a Delegate to the Congress of tli'> United 
States. It is in full compliance, both in form and 
substance, with the Constitution. . This branch 
of our jurisdiction is, then, limited by this law, 
and the ascertainment of the fact as to whether 
the Delegate applying for a scat here was elected 
under it and pursuant to it. If we extend our 
inquiries beyond the subjects pointed out by the 
Constitution, wc are transgressing our powers, 
and to that extent usurping authority. 

When we examine as to the qualifications of the 
Delegate, we again find ourselves limited and our 
inquiries directed by the Constitution to his age, 
citizenship, and inhabitancy of the Territory. 
These are the qualificatioiis laid down in the sec- 
ond section of the first article of the Constitution, 
and no State law can either add to them, or dimin- 
ish them. If a State or Territorial Legislature 
were to attempt it, as has been done, it is the 
duty of this House, as it has done on similar 

j occasions, to disregard them, and consider them 
null and of no effect. In the word " returns, " we 

'perhaps find our jurisdiction the largest, because 

! that is nowhere defined or limited by the Consti- 

jtution. What arc the returns of an election? It 

I is not only the form in which the result of an 
election is made, but it embraces the casting up 
of the votes, and all means by which this result 
is to be arrived at. It authorizes an-inquiry into 

I the right of the voters to vote, and whether legal 
votes have been rejected; and, indeed, into all and 

j everything that makes up the result of a^i elec- 

j tion. 

These are all subjects of legitimate inquiry by 

: thisHouse; and I repeat that we on this side' of 

I the question do not decline this investigation to 
the extent and in the mode which I have indi- 
cated. We have been always ready to inquire 
into and ascertain whether the election of Dele- 
gates in Kansas was conducted according to law — 

1 whether illegal votes were received by the judges, 
and whether legal votes were rejected by them — 

[ whether the returns exhibit the true result, and 
if the claimant has the qualifications required by 
the Constitution. This embraces all our jurisdic- 
tion over the subject and of course concludes our 

! investigation. 

1 But io this all we are required to do by the ma- 
jority of the committee, and those who advocate 
the resolution and the reasons they have reported ? 

' Oh, no! by no means. They are not content to 

, go into the subjects of investigation to Vhich our 
steps are directed by the plain letter of the Con- 
stitution; but they invite us to inquire into other 
matters, jurisdiction of which has been rightly 

' taken, as I think, by another tribunal, to which 



they of right belonged. Tlioy allege that the Legis- 
lature which enacted the law under which the 
■ sitting Delegate claims his seat was an illegal as- 
sembly of persons; that it was conceived in cor- 
ruption and brought forth by violence; that it 
assumed the guise of a legal and authoritative 
Legislatin'e for the purpose of imposition and 
fraud. They insist that wo shall examine into 
the " election, returns, and qualifications" of the 
members composing this body, who assumed the 
duties of legislation for that infant Territory. 

Now, Mr. Speaker, where arc we to get the au- 
thority to examine into the " election, returns, and 
qualifications" of the members composing either 
the State or Territorial Legislature? I have at- 
tempted to show, and hope I have succeeded, that 
the Constitution, that chart of our powers, does 
not authorize the investigation proposed. 

The Legislature of Kansas has examined and 
derided upon the elections, returns, and qualifi- 
cations of i!fe own members, and we can neither 
take appellate nor original jurisdiction of the same 
question; nor have those who have insisted upon 
the exercise of this power by the House furnished 
either argument or precedent to justify us. Early 
in this debate I rememlier to have heard the elo- 
quent gentleman from Georgia, [Mr. Stephens,] 
in gallant and knightly style, challenge the advo- 
cates of this power to produce a single case, in 
either England or America, in which all the legis- 
lative assemblies had not claimed and exercised 
the right to decide upon the elections, returns, 
and qualifications of their own members. Now, 
sir, we all acknowledge the qliility of gentlemen 
who advocate the adoption of this resolution; we 
have all been made sensiljle of their industrious 
habits, and have witnessed in them a zeal that 
would more become a better cause — with books 
at their command without stint; and not a single 
case have they adduced that, in the slightest 
degree, would justify the step which they pro- 
pose. 

Mr. ALLISON. 1 think the gentleman from 
Mississippi does not make anything by that; for 
it is -impossible in the history of either of the 
Governments to get a parallel case to the one 
which is now before the House. Shall it make 
anything for his side of the question, because in 
the history of neither Government can there be a 
case found at all similar to the ojie under discus- 
sion. I therefore object to the gentleman 's taking 
anything by such a demand. The case is an un- 
paralleled one in the history of our Government, 
and how could there be one like it in Great Britain — 
a Government entirely dissimilar to ours, and 
presenting no such case, having at no time a Del- 
• egate on the floor of the House of Commons to 
represent the people of a Territory? It therefore 
comes far short of the case now before the House, 
and nothing should be made by any such demand. 
• Mr. LAKE. I will leave for the present the 
course^ of my remarks, and reply to the gentle- 
man from Pennsylvania. • He says there. is noth- 
ing in Great Britain like it — no territorial repre- 
sentative, and therefore no precedent ought to be 
expected from that quarter. Well, suppose they 
have no territorial representatives? Have they 
not got popular representatives, and cannot the 
same question arise in all countries where they 
have a legislative assembly composed of popu- 
lar representatives? The question, Mr. Speaker, | 



[it seems to mc, might arise in Great Britain as 
well as here, though perhaps not as likely to do 
so. I do not limit tiiose who differ with me on 
this subject to the finding of examples amongst 
territorial representatives. Let them show any 
case, arising out of State representation, in which 
this House or State Legislatures have, either, 
exercised the power now claimed by gentlemen 
to belong to this House. I say they have not 
done it, and cannot do it. 

But the gentleman says, that the case is with- 
out a parallel, and tliat neither side can find cases 
or precedents to sustain them. I ditff'r with the 
gentleman; and say, that to the extent tliat we 
propose to go in this investigation, the book 
before me (Contested Elections) is full of prece-' 
dents. We are following the beaten track, both 
of this and the English Government, and there is 
no dearth of authorities and sign-boards to show 
us that we are on the great highway. But tliosa 
gentlemen who seek to draw us away from this 
course, may well be asked to exhibit some prece- 
dent or sign that we shall be right in following 
them. 

But, Mr. Speaker, some of the gentlemen on 
the other side did take up the glove thrown down 
to them by the distinguished champion from 
Georgia, and have endeavored to mak* good their 
acceptance. The gentleman from Pennsylvania, 
[Mr. KuNKEL,] and the venerable chairman of 
the Judiciary Committee, as well as the gentle- 
man from Indiana, [Mr. Barbour,] have all un- 
dertaken to meet this bold defiance by the intro- 
duction of authorities, in the shape of precedents, 
to sustain- their course. Their failure is an ad- 
ditional argument against them, and is "confirm- 
ation strong, as Holy Writ" of the position as- 
sumed by those who advocate this side of the 
question. I will examine these authorities before 
I finisl]. 

Now, sir, I hold that the Kansas Legislature, 
like all other legislative assemblies that emanate 
directly from the people, was, from necessity, re- 
quired to judge of the elections, returns, and qualifi- 
cations of its own memb(,rs. All must admitthat, 
in popular representative governments, this is a 
preliminary C[ueslion to that of legislation. Who 
are appointed to legislate must be decided before 
the legislation can comnjence. It is not a certain 
number of citizens who are authorized to legis- 
late, but a certain number of representatives of 
the people. Who are, and who are not, repre- 
sentatives must, therefore, be ascertained, befora 
the business of legislation commences. Only 
those whom the people have appointed and clothed 
with authority can rightfully legislate for a State, 
All will admit that the question must be dgcided, 
and that the decision ought to precede legislation. 

Now, who is to decide this question ? I hold 
that it is an inherent right in the Legislature 
itself. I do not assert that Congress could not 
have placed this power in some other body or 
tribunal; but not having done so, I think it be- 
longs to each branch of the Legislature to decidj> 
for itself. 

It is an incident to the power of legislation. 
When Congress authorized the people of Kansas 
to elect a Legislature and make laws for them- 
selves, they conferred incidentally upon that 
Legislature the right of judging of the elections, 
returns, and qualifications of its own members. 



4 



The grant of nower to legislate carried with it all the 
incidents and means necessarv to, render effectual 
the power granted. Tiie right to protect tlKjiii- 
selves from intruders and usuriiers — tiie means, 
of ascertaining who had tin: p(.'ople's credentials — 
who had been elected bj' them — were necessary- 
incidents to the great right of legislation, and in- 
dispensable to its exercise. By way of illustration, 
I will point to the clause in the Constitution, which 
says: 

" When vacancies happen in the representation of any 
State, llie executive authority tliereof bliali iscus writs ot' 
election to fill such vacancy." 

The authority hereby conferred on the Gov- 
ernors of the States carries with it the authority 
to appoint the time, places, and manner of hold- 
ing an election to fill the vacancy, as fully and 
completely, and to tlic samccxtent,as that power 
is conferred on the Legislatures of the States, by 
the fourth section of the first article of the Con- 
stitution. 

The whole doctrine of contempts in courts of 
justice is anotlier illustration of^ the principle I 
nave stated. A court fines and imprisons for con- 
tempt, without having the power expressly con- 
ferred upon it; but the power is conceded to belong 
to it as an incident necessary to the execution of 
the great powers intrusted to its administration. 
These examples establish tiie principle here eon- 
tended for — that the grant of a power carries with 
it all the means and appliances necessary to carry 
into effect the power granted. 

It is true, sir, that the Constitution confers on 
each House of Congress the right to decide upon 
the elections, returns, and qualifications of its 
members; but I have no doubt that each would 
have possessed this right, even if the Constitution 
had been silent on the subject. The House of 
Commons, in England, has always exercised 
the same right; and yet there is no Constitution 
there to confer it, and no act of Parliament has 
conferred it. It seems to me, sir, that unless the 
Kansas and Nebraska bill has vested this power 
— so indispensable to the right of legislation — 
somewhere else, it may be safely assumed to 
belong tq each branch of the Legislature as an 
inherent right. 

In corroboration of the views which I have here 
presented, I will call to the recolleetion of the 
House 'the remark made by my friend from 
Maryland, []Mr. Davis,] in the very eloquent 
Sj3eech with which he delighted all hearers a few 
days ago on this subject. He represented the 
Supreme Court as having decided that the ques- 
tion which I am no\\4 discussing can never arise 
in a court, because the duty of courts commences 
wirere legislation ends. The organization of the 
Legislature must be conceded before the power 
of the courts can be c;illed into exercise. I have 
not read the decision, but will suppose it to be a 
sound politicttl theory. How important is it, there- 
fore, to concede this power in the Legislature, as 
the question caiuiot be made in the courts! 

But, Mr. Speaker, I am constrained lo dissent 
from my friend [I\Ir. Davis] in the opinion ex- 
pressed by him, that the act organizing the Ter- 
ritory of Kansas conferred the power of judging 
of the elections, returns, and q\iali(ications of the 
members of the Legislature upon tlie Governor. 
He says, this pov/eris vested in the Governor by 
the twenty-second section, which declares, that 



" the persons having the highest number of legal 
votes in each of said council districts for mem- 
bers of the Council shall be declared by the Gov- 
ernor to be duly elected to the Council; and the 
persons having the highest number of legal votes 
for the House of Repftsentatives sliall be de- 
clared by the Governor to be duly elected mem- 
Ijers of said House." By this section. Congress 
directed the Governor to have the firi-t election^ 
held at such time, places, aifti in such manner as 
he might direct; lay off thf districts; apportion 
the representation ;appoint the judges; and i^^ally 
declare tlie persons elected who had the highest 
number of votes. 

The returns of the officers holding the election 
were evidently designed to be made to the Gov- 
ernor, there being in fact at that, time no other 
public functionary to whom they could properly 
be made. But I cannot think that the language 
quoted from the act ever was intended to confer 
upon him the power in question, especially when 
we recollect that it is a power always exercised 
by the Legislatures of tlie States, and never, in a 
single 'instance, that I am aware of, exercised by 
a Governor. Throughout the whole organic act, 
the intention of Congress to make the same divis- 
ions of power that have obtained in t'?ie State 
governments, is most manifest. This power, if 
conferred on the Governor, as is supposed, was 
a remarkable departure from the usages in the 
States, and without any reason for its exercise by 
the Governor, at the first assemblage of the Legis- 
lature, that would not ajiply with equal force to 
all subsequent meetings of that body. The elec- 
tion returns all being made to him, it is not won- 
derful that he should have been authorized to 
issue certificates of election to such persons as 
appeared to have the highest number of votes, and 
which would be presumptive evidence of an elec- 
tion. But, sir, 1 think the organic act itself con- 
tains the strongest argument against the idea that 
this power was conferred upon the Governor by 
the language which has been quoted from the 
twenty-second section. 

The thirty-second section of the Kansas and 
Nebraska act provides for the election of a Dele- 
gate to this body, and contains the following 
clause: 

"The person liavinii the greatest nunibor of votes sliall be 
fleglarcci hy the Governor lo 1)>: duly cli;eted, and a ccrtiii- 
cate tlicrenr shall be ;|ivcn accordingly." 

The language last quoted is almost identical 
with that cited above to show the Governor's 
power to declare members of theCouncil and of 
the House duly elected. The language is not 
only the same in the quotations, but is used in 
reference to kindred sulijects, ami must have the . 
same meaning attached to them. If Congress 
intended that the Governor should have the power 
to judge of, and determine, the elections, returns, 
and qualifications of the members of the Council 
and the House of Representatives, it is most cer- 
tain that they intended»to confer on him the sama 
])ower in reference to the election of Delegate to 
this body. But Congress could not confer upon 
the Governor of Kansas the power over the elec- 
tion of Delegate to this House that my friend 
from Maryland claims they have done over th« 
memliers of the Council and the House of Rep- 
resentatives of the Territory. The Constitution 
having placed the power in this House, it canriot 



be maintained for a moment that Conjire'ss in- 
tended to vest the same power in the Governor 
■of Kansas. It could not be done, and doubtless 
was not attempted. It seems to mc clear beyond 
.cavil, that Congress neverinteudod to conferupon 
the Governor of Kansas any other power over 
the elections, returns, and qualifiijations of the 
members of tlie Council and of the House of Pv.ep- 
resentatives than is usually exercit5ed by Gover- 
nors of the States in similar circumstances, and 
that his certificate was only prima facie evidence 
of the election, and not conclusive. 

But, sir, the cry is still, that tlie members of the 
Legislature were elected by armed stran£;ers, who 
drove the citizens from the polb, or so intimi- 
dated them as to keep them from voting;; and all 
this, they, say, calls for remedy and redress. 
I admit that if the members who composed 
the Legislative Assembly were elected by stran- 
gers, and not by the citizens of the Territory, it 
was a great outrage, and ought and could have 
been remedied, lif the views which I have pre- 
sented on this subject are deemed sound, then 
their remedy \vas by contesting before the Legis- 
lature 4tself the election of these spurious mem- 
bers. Then was the time and then the place to 
apply the correction to this evil. It was the duty 
of those who now complain that they wci-e the 
vietims of this outrage. If they preferred sub- 
mission to wrong, to a manly resistance at the 
E roper time and place — if, as the lawyers say, they 
ad their day in courts and would not demand 
the redress that they were entitled to, it was 
their own folly, and their coraplajutsat this day, 
whilst they cannot cure the evil, publish their 
own shame. 

It is not the least suspicious circumstance about 
this case, that these American freemen (as they 
are called) should have submitted with so much 
patient forbearance to these wrongs, never having 
preferred their complaints at home before the 
authorities whose duty it v/as to hear them, but 
reserved them for our ears, who have not the 
power of redressing them. In.'jtead of resorting 
to a jury of the vicinage, they changed the venue, 
and removed the case two thousand miles to Con- 
*gress, and reqj.iire us to say w"hethor this was or 
\^a3 not a valid Legislature. To that we answer, 
that it was a valid Legislature so far as we are per- 
mitted to judge. We know tliat the organic law 
of the Territory provided for a Legislature, and 
prescribed how it«hould be chosen, setting out 
the qualifications of voters, and directing the 
Governor to appoint the time, place, ond manner 
of holding the election. We know that the Gov- 
ernor performed his duty in this regard, and that 
the Legislature was convened pursuant to his 
call. He communicated with them as a legislative 
body, and a series of laws was passed by them 
amongst which was one i-egulating future elec- 
tions. This law, therefore, is accompanied by 
all the marks and evidences of a valid enactment 
that any law can po.ssess; and unless we declare 
that our functionaries are all corrupt, and that 
neither faith nor confidenc/3 can be jilaced in man, 
we are bound to say that the Legi.-daturc was 
constituted according to law, and that these enact- 
ments have all the sanctity and validity pf laws. 
Now, Mr. Speaker, I will briefly review the 
cases introduced by gentlemen on the other side 
of this question which, they allege, maintain 



and fortify their position. Remember, sir, that 
they insist that this House can examine into the 
elections, returns, and qualification.s of the m«'m- 
bcrs of the Kansas Legislattin^, and that tlioir 
authorities sustain that view. The caf;e of Spauld- 
ing vs. Mead, from Georgia, was relied upon by 
thd three gentlemen who accepted the challenge of 
the gentleman from Georgia, [Mr. Stephevs.1 
The case will be found in the volum:^ of contostcu 
cases from 1781) to 1834. It exhibits the following 
facts: The Legislature of Georgia passed a law 
fixing the time, place.", and manner of holding 
elections for membens of Congress, and added to 
these requirements of the Constitution, that the re- 
turning officers should make their returns within 
twenty days after the election. By the return.s 
made within the twenty days, as was required by 
the statute. Mead had 4,438 votes, and Spaulding 
had 4,269. The certificate of election was given 
to Mead. Three of the counties of the district did 
not make returns Vi'ithin the twenty days, and 
they were excluded. The sole olijection to these 
returns was tiic tardiness v/-ith which they were 
made. When added to the return.'? rcceivc-d 
witjiin the time prescribed by law, they changed 
the result, and showed a majority of thirty-nine 
votes for Spaulding. Spaulding contested the 
seat of Mead successfully. The report of the 
committee was in his favor, 'and received the 
sanction of the House. I read the following ex- 
tract from it: 

" Upon tlie fbrcgoing statement of facts, as the Constitu- 
tion lias made tUis^ House tlio judge of the elections atwl 
returns, as well as* the qualificalioris, of its iijejiibers ; as 
the returns from the State authorities, therefore, are only 
prima facie evidence of an election, but not conclusivi upon 
this House ; as there is in the present case satisfactory 
proof, that the votes of the three counties in question, al- 
though the returns thereof were not transmitted to the tlov- 
ernor in season to be considered by liiin, were, originally, 
good, lawful, constitutional votes, kacins, hccyi giccn In/ qual- 
ified voters on the day, at the plans, and in the manner pre- 
scribed by law ; and as neither the voters wl:o gave them, 
nor Llie candidates in whose favor they were siven, have 
done, or omitted, anytliing on their part to forfeit their re- 
spective right, the eoiiiniitt^e are of opinion that these 
votes ou'^ht to he allowed, and therefore recommend the 
following resolution." 

This case, so far from opposing, affirms the view 
that I have taken of this case. The Georgia elec- 
tion law contained other requiremeius than those 
contained in the constitution. It not only pre- 

_seribed the time, places, and manner of holding 
the eleetion as required by the constitution, but 
excluded all returns not made to the Governor 
within twenty days from the day of the election. 

.The law was in conflict with the constitution, 
and was therefore not obligatory upon the House, 
but was rejected by them. . 

The next case cited by these gentlemen, or 
some of them, is the case of Barney vs. McCroery, 
from Maryland, and will lie found in the second 
volume of "Contested Elections," at page 167. 
The lavvT of Maryland districting the State and 
regulating elections made a district of Baltimore 
county and city, and authorized the election of 
two Representatives to Congress, one of ichich 
should reside in the city, and the other in the coiintij. 
Four candidates run. Mr. Moore lived in the 
county, and received G,164 vot^s; Mr. McCreer' 
lived in the county, and received 3,559 votes; RI . 
Barney lived in the city, and received 2,063 vote"; 
aiid iMr. Seat, who also lived in the city , receiv-d 
353 votes. Mr. Moore's- election v/as conced.d. 



6 



Mr. Barney, relying upon the law of Maryland, 
contested Mr. McCreery's scat, because he re- 
sided in the county, and not in the city. The 
conuressional committee in this case say in their 
report as follows: 

'•Tlie coininittoe proceeded to examine the Constitution 
witli relation to the case submitted to them, and find that 
the ijuahtieations of members are llierein determined, with- 
out reserving any authority to the State i,cgislatures to 
change, add to, or diminish those qualifications; and that 
by thut instrument Congress is constituted the sole judge 
of the i|ualifications prescribed l)y it, and obliged to decide 
ai^reeably to the constit\itional rules ; l)ul the State Legis- 
latures being l)y the Constitution authorized t» i)rescribe 
the time, place, and manner of holding the elections, in 
contioversies arising under this authority Congress is 
obliged to decide agreeably to tlie laws of the respective 
States. 

"On the most mature consideration of the case submitted 
to tliem, the committee are of opinion that Wflliam Mc- 
Creery is duly qualifnui to repres(;nt the (iilh district of the 
State of Maryland; and that the law of that State restrict- 
ing the residence of members of Congress to any particular 
jmt of the district for which they may be clioseu is con- 
trary to the Constitution of the United States." 

The House cannot fail to perceive that this 
cnso, like the one from Georgia, turned upon the 
fact, that the law of Maryland undertook to add 
tiualilicalions not contained in the Constitution 
of the United States; and the House was bound 
either to disregard the la\r of Maryland or violate 
the Constitution. This cttse also sustains the 
view which I have taken of our power and duty 
in reference to the contested election before us. 
Whenever the Constitution prescribes that the 
_ State Legislatures shall, by law, prescribe the 
time, place, and manner of hold^ing the election, 
and the law thus passed complies with the Con- 
stitution, we will conform to its requirements; but 
when the Legislature goes beyond the dictates 
of the Constitution, either in the matter of elec- 
tions, or^ the qualifications of Representatives, 
then we are to reject the law or violate the Con- 
stitution. In these cases the validity of the State 
laws were tested by comparing their provisions 
with those of the Constitution, and not by insti- 
tuting an inquiry into the election, returns, and 
qualificjitions of the members of the Legislature 
who passed them. 

Some other cases have been cited by gentlemen 
on the othe^side, not more applicable tiian those 
that 1 have noticed, and equally reconcilable with 
the principles that have been maintained on this 
side of the question. Two of then'i occurred in 
the other end of the Capitol, in which the Senate 
inquired whether the claimant had been elected 
by tiie Legislature of the State which he claimed, 
to represent. This was certainly a very legitimate 
inquiry, seeing that the Constitution has pro- 
vided for the election of Senators in that way and 
no other. If they were not elected by the State 
Li.^gislatures, they were clearly not entitled to be 
receiv('d as Senators. But, in none of the cases 
cited by gentlemen, in whicit the contest was be- 
fore this House or before the Senate, does it appear 
that cither body ever inquired into the elections, 

: turns, and qualifications of the members com- 
_)osing the State Legislatures;and I fee! warranted, 
therefore, in repeating the di.'fiant remark of the 

^nllcman from Georgia, [Mr. Stephens,] that 
sucli case can be found in either England or 
■rica. 

ow, Mr. Speaker, we have heard much about 
, tVaud, corruption, and violence by which the [ 



Kansas Legislature was elected, and the people 
cheated out of the rLi^rescntativeS of their choice, 
^ou will find thai fraud, corruption, violence, tini 
invasion, and such like monstrous terms, figure 
ntost conspicuously in the report of the majority 
of the committee. You will also find the same, 
or similar plyases and ideas, composing the staple 
of the speeches made in support of that report. 
It becomes worth while now to inquire how far 
all these grievances, supposing them to exist, will 
affect the validity of an election. Suppose it to 
be true, as alleged in the report of the majority, ■ 
that large bands of organized men came over from 
Missouri with martial music, with banners flying, 
together with "all the pride, pomp, and circum- 
stance of war." Suppose they had tents and 
arms, provisions and forage, and in one instance 
artillery, and pitched their tents in and about the 
places designated for holding the elections, for 
the purpose of intimidation; and suppose the cit- 
izens were actually intimidated, and ki^pt away 
from the polls by the dread of insult or persontil 
violence; or suppose that they were actually 
beaten off, or captured and detained from the 
polls, and prevented from exercising the elective 
franchise, — would any or all of these outrages in- 
validate or affect the returns of an election. 

Do not suppose, sir, for one moment, that I 
an\ either tlie advocate or apologist of such 
scenes; but I wish to ask if they can affect the 
legality of an election.' I certainly think not. If 
legal votes are presented to the judges and rejected, 
or if illegal votes are received by them when they 
should have been rejected, the returns will be 
invalid Uj the extent of such occurrences; und it 
would be the duty of the Legislature, avIu) are 
the judges of these returns in the last resort, to 
purge the polls and declare the true result. But 
any violence or traud by which legal voters were 
kept from the polls, I maintain, would not be 
considered by those who are charged with the 
duty of deciding upon the election, returns, and 
qualifications of members, or those claiming to 
be members. These views apply to all elections, 
either for members of the Legislature, or for Dele- 
gates or Representatives to this House. 

To illustrate my views, I will suppose a case! 
Suppose great excitement was gotten up, durifig 
the canvass, between the contestants in this case — 
suppose the angry passions of their supporters to 
be aroused to a very high degree, and that two of 
the friends of each of the gen|)emen had casually 
met the day before the election, and from angry 
words they had proceeded to blows; and suppose 
the friends of the sitting Delegate had so beaten 
the friends of his rival as to prevent them from 
getting to the polls on the next day; and suppose 
the Hiturns to shov/ the sitting Delegate to be 
elected by one majority only, and the fact be mado 
to apjiear that, if the beaten voters could have got 
to the polls, that the majority would have been 
reversed,— I ask, ei^phatically, if the returns 
would be altered so as to, rid the result of the 
effects of this violi-nce .' I say, no; and bihcve no 
man in this House c;in be found to say yes. 
Under our povrer to jtidge the election, returns, 
and qualifications of members, we would be com- 
pelled to award the seat to the silting Delegate. 
Thi: elective franchise is a per.sonal right : it belongs' 
to the man. He may waive it, he may refuse 
to use it for a consideration, or he may be brow- 



beaten and intimidated from its exorcise, or he i 
may cast it for a consideration at the bidding of i 
another; but all these abuses of this jjreat privi- j 
lege, though they may be cfiisund, they cannot i 
be removed by us when \vc come to judge of the | 
eUclion, returns, and qualifications of meml)ers. ! 

Mr. Speaker, we are told, in this majority re-i 
port, that the Territory of Kansas was not only 
invaded by an armed force of foreigners, but that 
they have ever since held possession of it, and 
that the people of the Territory are now subju- 
gated by these invaders. The committee have 
been imjiosedon. Does any man in this House, 
save themselves, believe this story? Is it not 
amazing that the majority of the committee should 
exhibit such credulity? An invading force has 
held possession of the Territory of Kansas, and 
actually subjugated the people by physical force; 
and yet we have a Governor there, whose duty 
it is to repel invaders, and quell domestic violence 
bj- the means subject to his control: and if it can- 
not be done by him, at. the call of the Legislature 
or upon his own representation, the President of 
the United States is required by law to send the , 
Army and Navy and militia from the States to ! 
his assistance. The Governor is in communica- 
tion with the President, and the President with 
us, and yet no note of alarm has come to us or 
the country from either of these distinguished 
functionaries. Mr. Speaker, it is not — it cannot 
be so. You do not believe it. As the story came 
here with this contestant, it seems to have been 
gotten up for congressional consumption only. 

Sir, I am opposed to giving the committee the 
power of sending for persons for another reason 
of great force with me. The reasons given in the 
majority report for the exercise of this extraor- 
dinary power are mainly contained in the address 
of Governor Recder (the contestant) to them. 
His sensibilities seem to be much exiyted in be- 
half of the dear people whose representative he 
claims to be. He has described their sufferings 
and wrongs in their present state of subjugation. 
He is one of them — their friend; and occupying, 
as he says he does, the interesting and delicate 
relation of representative of them, let us see if 
this picture which he has drawn of them — his 
" chosen people" — is such as to recommend them 
to us as credible witnesses. He says they were 
driven from the polls on tlie 30th of March. Yes, 
sir, these freemen — the descendants of the Pilgrim 
Fathers, whose chivalrous love of liberty won 
for them an empire on this western continent — at 
the bidding of strangers, laid down the elective 
franchise, and took up the yoke of the conqueror. 
Governor Reeder was then Governor of the Ter- 
ritory, in (be zenith of his power, basking at full 
length in the sunshine of presidential favor, and 
then, as now, the ardent friend of the free people 
of Kansas, able and willing to redress this wrong 
of being despoiled of the elective franchise. Well, 
of course he made them all free again, and restored 
to them tliat jewel of which their conquering foes 
had deprived them — the elective franchise. No, 
sir, he says to the committee that he did not, be- 
cause these freemen were afraid to ask the boon 
of deliverance. They suffered on, and continue 
to suffer; and he asks that they may be sent for 
and brought here, in order that they may tell the 
story of their wrongs to us; for they are still so 
intimidated that they cannot tell it in Kansas. 



This, then, is the picture. Fright drove them 
from the polls! fright prevented Uiem from com- 
plaining to him! and fright will keep them now 
from telling the truth boldly in the Territory! 

I ask-, Mr. Speaker, if these men claim to be 
the sonsof revolutionary sires? I ask if the blood 
of Warren and Hancock circulates in their vein.s? 
No, sir; in my judgment, if the picture wliich 
Governor Reeder has drawn of them be true, they 
are the miserable spawn of the emigration aid 
society. They are too craven , too spiritless, even 
to be conductors on an underground railroad. 
[Laughter.] Yet gentlemen gravely ask you to 
bruig these men here for the purpose of testifying, 
and expect you to believe them. Suffering, as they 
do, under an excessive timidity, you could only 
get them to testify by slipping them into a com- 
mittee-room, to tell the story of their wrongs in soft 
whispers to the gentle ears of a committee. If I 
believed the picture of their degradation, as drawn 
by their representative, I would not believe them. 
The man that submits to outrages and forbears to 
complain, or to ask for redress from timidity, 
ought not to be put upon the witness-stand, l)e- 
cause he ought not to be believed. It requires 
more boldness to speak the truth than these Kan- 
sas witnesses scevn to possess. 

But, Mr. Speaker, I will say that I do not be- 
lieve this account of any considerable portion of 
the American people; 1 believe that it is a pic- 
ture drawn and painted for effect; I believe it is 
not faithful; it is a caricature. If the outra'^es 
of which we hear- were really perpetrated at the 
polls in March, the people of Kansas would jiot 
have suppressed their complaints, but would have 
demanded redress. And now, sir, I doubt not 
that, if a commission is sent out to take their 
depositions, they will tell the truth. If they are 
the pusillanimous, abject creatures that this pic- 
ture would have us believe they are, interference 
is vain. The Government did wrong to exchange 
the Indians who possessed the country for such 
men. It was a bad trade. [Laughter.] Better^far 
better, would it have been to have left the broad 
prairies, the beautiful woodlands, and purling 
streams erf that region to the sons of the forest, 
than to have cursed it with such a race. 

A few words more, sir, and I have done. Tlie 
only purpose declared by the memorial of Gov- 
ernor Reeder for sending for persons is to prove 
facts to invalidate the laws of the Kansas Leo-is- 
lature. If I have succeeded in showing that the 
proof is inadmissible for that purpose, because it 
is not within our jurisdiction, then there is no 
reason for sending for persons, and tliis motion 
must fail. The memorial sets up no oilier demand 
for parol testimony, except to show Ahat the 
Kansas Legislature was illegal, because of the 
fraud and violence which prevailed at the election 
of its members. It is true, sir, that he charges, 
in his memorial, "that said pretended election 
was not conducted even according to the forms 
and mode prescribed by the supposed law which 
purported to authorize it." By " pretended elec- 
tion" he means the election of the sitting Dele- 
gate. This charge looks as if parol testimony 
was required to prove some departure from the 
law regulating the election for Delegate. But you 
will see, in a following senti-nce, that he excuses 
himself from making specifications under this 
charge, " bv reason that he has beec unable to 



; 8 

obtain from the cxccntive office in said Terri- 1 1 utive office. If, therpfore, the House is of opinion 
tnry the necessary information, or any copies of 1 1 that we cannot gci behind the Kansas law, and 
the returns of said ck;ction." Thus showing, M examine into the election rcturna and qualifica- 
unmistakably, that f»r legitimate objects persoiisf || tions of the mernbei-s of the Kansas Legislature, 
arc not M-anled from Kansas as witnesses.* For j, this ap]>licafion to send for persons is" nsolears, 
a!) pvirposts of legitimate inquiry he relies upon I aixd must fail. To the sonding^ for papers no one 
iiiformation and records containedin the exec- !,' objects. 



FhBt««l at Um Office of tli« C«>«gre»sice»l Oieb«- 



LBJl "Co 



